Citation Nr: 1027739
Decision Date: 07/23/10 Archive Date: 08/02/10
DOCKET NO. 04-40 739 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to an increased (compensable) disability rating
for service-connected left knee traumatic arthritis prior to
November 12, 2003.
2. Entitlement to a disability rating in excess of 10 percent
for service-connected left knee traumatic arthritis prior to
November 18, 2008.
3. Entitlement to a disability rating in excess of 30 percent
for service-connected left knee traumatic arthritis on or after
November 18, 2008
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Heneks, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1982 to August
1986.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from a March 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. A January 2010 supplemental statement of the
case (SSOC) assigned a 10 percent rating effective November 12,
2003 and a 30 percent rating effective November 18, 2008. The
issues have been recharacterized as reflected above.
In June 2007, the Board remanded the matter on appeal for further
development. Unfortunately, additional development needs to be
undertaken before a decision can be reached on this matter.
Accordingly, the appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In June 2007, the Board remanded the matter on appeal for further
development to include providing proper notice, obtaining any
additional medical records, and affording a VA examination to
address the current severity of the left knee. Although the RO
sent the Veteran a fully compliant notice letter in June 2007, it
was marked as return to sender in June 2008. Correspondence
received from the Veteran in November 2008 reflects a different
address than the one on the June 2007 notice letter. Because it
is unclear whether the RO send a notice letter to the Veteran's
new address, and there does not appear to be a compliant notice
letter of record, a remand is necessary to ensure he receives
proper notice.
In November 2008, VA received two completed releases that pertain
to the Veteran's claim for an increased rating for his left knee.
One is for private records from Dr. S. Jr. dated from March to
November 2008. The other is for private records from Dr. C.M.C.
dated from 1992 to 2008. However, it does not appear that VA has
attempted to obtain these records. Accordingly a remand is
necessary. 38 C.F.R. § 3.159(c)(1).
In June 2009, the Veteran underwent a VA examination. The
Veteran reported that in 2000, he fell down about five stairs and
injured his left knee. He asserted that he was diagnosed with a
torn meniscus and underwent arthroscopic repair but without
improvement in his symptoms. He reported increasing pain and
underwent a total left knee replacement in 2008. A September
2009 VA treatment entry indicated that the Veteran had a left
knee arthroscopy in December 2007 at M.S. by Dr. H. and in July
2008 underwent a left total knee replacement at G.M. by Dr. T.S.
The Board observes that treatment records from M.S., Dr. H.,
G.M., and Dr. T.S. have not been associated with the claims file.
Because these records pertain to the service-connected
disability, they should be obtained on remand. Once these
surgery reports are obtained, the Veteran should be scheduled for
another VA examination.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should provide the Veteran
with a letter that complies with the duties
to notify and assist for the claims for
increased ratings currently on appeal.
2. After securing any necessary releases,
obtain private treatment records from Dr. S.
Jr. dated from March to November 2008 from
C.M.C. dated from 1992 to 2008 as identified
in the November 2008 releases. Additionally,
obtain the records pertaining to the left
knee arthroscopy in December 2007 at M.S. by
Dr. H. and the left total knee replacement in
July 2008 at G.M. by Dr. T.S. as identified
in the September 2009 VA treatment entry.
(The Board has used initials to protect the
identity of the Veteran. However, in all
correspondence to the Veteran, identify the
private treatment providers by their full
names in order for the Veteran to properly
identify these records.)
3. After the forgoing has been completed,
the Veteran should be afforded a VA
examination to ascertain the severity and
manifestations of his service-connected left
knee. Any and all studies, tests, and
evaluations deemed necessary by the examiner
should be performed. The examiner is
requested to review all pertinent records
associated with the claims file and to
comment on the severity of the Veteran's
service-connected left knee disability.
The examiner should report all signs and
symptoms necessary for rating the Veteran's
left knee disability under the rating
criteria. In particular, the examiner should
provide the range of motion in degrees and
indicate whether there is any ankylosis;
dislocated semilunar cartilage with frequent
episodes of locking, pain, and effusion into
the joint; or, the symptomatic removal of
semilunar cartilage. He or she should also
address whether the Veteran has recurrent
subluxation or lateral instability, and if
so, comment as to whether such symptomatology
is slight, moderate, or severe. The presence
of objective evidence of pain, excess
fatigability, incoordination, and weakness
should also be noted, as should any
additional disability due to these factors.
The examiner should further address the
effect of the Veteran's service-connected
left knee disability on his employability.
The examiner should also comment as to the
relationship, if any, between the Veteran's
service-connected left knee traumatic
arthritis and his left knee arthroscopy in
December 2007 and the left total knee
replacement in July 2008.
A clear rationale for all opinions would be
helpful and a discussion of the facts and
medical principles involved would be of
considerable assistance to the Board. Since
it is important "that each disability be
viewed in relation to its history [,]" 38
C.F.R. § 4.1 (2009), copies of all pertinent
records in the appellant's claims file, or in
the alternative, the claims file, must be
made available to the examiner for review.
4. When the development requested has been
completed, the case should be reviewed by the
RO on the basis of additional evidence. The
RO should also undertake any other
development it determines to be indicated.
If the benefit sought is not granted, the
Veteran should be furnished a Supplemental
Statement of the Case and be afforded a
reasonable opportunity to respond before the
record is returned to the Board for further
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).